Calabrese v The Queen

[2022] SASCA 26

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

CALABRESE v THE QUEEN

[2022] SASCA 26

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice David)

25 March 2022

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS

The appellant pleaded guilty to one count of possessing a firearm without a license contrary to s 9(1) of the Firearms Act 2015 (SA). The firearm was an "air rifle". Following his arrest, the appellant spent 15 days in custody awaiting bail. On 14 October 2021, the appellant was sentenced by a Judge of the District Court to ten months' imprisonment, reduced to eight months and one day. The Judge suspended the sentence, on the condition that the appellant enter into a bond to be of good behaviour for 12 months.

By Notice of Appeal dated 4 November 2021, the appellant sought permission to appeal against his sentence on the primary ground that the sentencing Judge erred in failing to apply s 23 of the Sentencing Act 2017 (SA). The appellant's contentions included that the sentencing Judge did not give proper consideration to the period of imprisonment already served by the appellant, and that the sentencing Judge erred in finding that the appellant's previous conviction over 30 years ago had failed to deter the appellant from reoffending.

Held (by Livesey P and David JA) granting permission to appeal and allowing the appeal:

1.      The sentence imposed was manifestly excessive.

2.      Where the appellant had served 15 days in prison in connection with his offending, the imposition of a ten-month sentence was not necessary to meet the requirements of general and personal deterrence as well as community safety.

3.      The orders made in the District Court are set aside.

4. On resentence, a conviction is recorded but otherwise no further penalty is imposed under s 23(2)(d) of the Sentencing Act 2017 (SA).

Held by Lovell JA granting permission to appeal and allowing the appeal:

1.      The sentence imposed was manifestly excessive.

2.      The appeal is allowed, and the orders made in the District Court are set aside.

3.    On resentence, the appellant is sentenced to six months imprisonment reduced by 15% for his plea and by 15 days for time spent in custody.  The sentence is suspended on the same conditions as the Sentencing Judge.

Criminal Law (Sentencing) Act 1988 (SA); Firearms Act 2015 (SA) s 9(1); Sentencing Act 2017 (SA) ss 23, 23(2)(d), referred to.
Allsopp v The Queen [2021] SASCA 34; Elliott v Harris (No 2) (1976) 13 SASR 516; Golding v Police [2007] SASC 159; House v The King (1936) 55 CLR 499; Kentwell v The Queen (2014) 252 CLR 601; KMC v Director of Public Prosecutions (SA) (2020) 267 CLR 480; Markarian v The Queen (2005) 228 CLR 357; Police v Zefi [2003] SASC 218; R v Akol (2020) 284 A Crim R 246; R v Bukvic (2010) 107 SASR 405; R v Capaldo [2015] SASCFC 56; R v Darling [2017] SASCFC 46; R v Fusco [2017] SASCFC 47; R v Gasmier [2011] SASCFC 43; R v Graham [2007] VSCA 252; R v Locke (1973) 6 SASR 298; R v Malakouti [2018] SASCFC 115; R v Reiner (1974) 8 SASR 102; R v Simpson (2016) 125 SASR 352; Sims v Police (2000) 30 MVR 524; Varnavides v Victorian Civil and Administrative Tribunal and Another (2005) 12 VR 1; Warne v The Queen [2020] SASCFC 124; Weetra v The Queen [2021] SASCA 19, considered.

CALABRESE v THE QUEEN
[2022] SASCA 26

Court of Appeal - Criminal

LIVESEY P AND DAVID JA: 

1. The appellant seeks permission to appeal against a suspended sentence of imprisonment in connection with his possession of an “air rifle”.

   The offending

2. The appellant was charged on Information with possessing a firearm without a licence contrary to s 9(1) of the Firearms Act 2015 (SA). The firearm was a Category A firearm, being a “Cometa” single shot break action air rifle.  The maximum penalty was four years imprisonment or a $20,000 fine. 

3. The appellant pleaded guilty at the answer charge hearing on 8 April 2021, after which he was committed for sentence. Pursuant to s 40(3)(c) of the Sentencing Act 2017 (SA) (the Act), the appellant became entitled to a reduction in sentence of up to 15% on account of his plea. 

4. The appellant was arrested following a search of his premises on 21 August 2020 but not released on bail until 4 September 2020.  The appellant spent 15 days in custody.

5. Before his arrest, police located the air rifle just inside the main entrance to the second storey of the appellant’s residence.  It was partly concealed but readily accessible.  The appellant admitted to police that his daughter’s father-in-law lent him the air rifle about 15 years before, so that he could shoot the rats that were eating the fruit on his large property.  The appellant was not asked whether or to what extent he had used the air rifle since.

6. Whilst the appellant admitted knowing that it was a requirement to have a firearms licence, he said that he completely overlooked and misunderstood his obligations with respect to the air rifle.  That submission was not accepted. 

7. The appellant had previously been the holder of firearms licences.  He effectively relinquished these when he experienced difficulty completing the courses necessary to maintain them.  He was, effectively, illiterate.  He had been a member of a pistol club for a number of years and had owned around 13 firearms. 

   The offender

8. At the time of sentence, the appellant was 73 years of age, having come to Australia from Italy in 1967 at the age of 21 years.  The appellant had three adult children and had enjoyed a long and financially successful career in stone masonry.  At the time of sentence, he had significant physical and mental health issues. 

   The sentence

9. The sentencing Judge accepted that the appellant was otherwise of good character, and she referred to a number of very favourable character references.  Nonetheless, the sentencing Judge described the need for personal deterrence as “important” because there was a previous conviction for the possession of a firearm without holding a licence of the appropriate class.  That offending occurred 30 years before sentence.  It was addressed by way of a fine.  According to the sentencing Judge, this prior conviction illustrated “that your previous interaction with the courts has not had a deterrent effect upon you”.

10. In submissions, counsel for the appellant emphasised the scope for the Judge to proceed in accordance with s 23(2) of the Act, which is in the following terms:

    (2)     If a court finds a person guilty of an offence and—

    (a)     the defendant has spent time in custody in respect of the offence; and

    (b)     the court is satisfied there is good reason not to impose any further penalty on the defendant,

    the court may—

    (c)     without recording a conviction—dismiss the charge; or

    (d)     on recording a conviction—discharge the defendant without further penalty.

11. Reliance was placed on the time already spent in custody which, given the appellant’s age and lack of serious criminal offending, was said to be significant.  The prosecution, however, opposed proceeding without conviction or on the basis that there would be no further penalty.  The sentencing Judge appeared to accept the prosecution’s submission that, though the offending was at the lower end of the scale of objective seriousness, it represented “a real and serious threat to public safety”. 

12. The sentencing Judge concluded that the “only appropriate penalty is a sentence of imprisonment” as there was “some history of relevant offending”. 

13. In these circumstances, the sentencing Judge would, but for the plea, have sentenced the appellant to 10 months’ imprisonment.  After reduction by 15%, the sentence became eight months and 16 days which, after a further reduction for the 15 days spent in custody, became a sentence of eight months and one day.

14. The sentencing Judge accepted the concession by the prosecution that there were good grounds for suspending the sentence.  These related to the circumstances in which the firearm came to be in the appellant’s possession, the purpose for which the appellant held the firearm, his age and personal circumstances and the fact that the appellant was “forthcoming with police from the outset”.  Accordingly, the sentence was suspended on the condition that the appellant enter into a good behaviour bond for a period of 12 months.

    The grounds of appeal

15. The appellant contends for the following errors:

    1.The sentencing Judge failed to have explicit regard to s 23(2)(d) of the Act when addressing whether it was necessary to impose a period of imprisonment in addition to that which had already been served.

    2.Despite the earlier conviction, there was no issue of continuing personal deterrence given that this occurred 30 years before.  It is submitted that this demonstrates that the earlier conviction was “not an aggravating factor”.[1]

    3.Finally, the sentencing Judge failed to take into account the nature of the firearm and the limited harm that it might inflict when compared with other firearms.  It is submitted that the sentencing Judge overlooked that the firearm was at the lowest end of the category of firearms caught by the section.

    [1]     R v Graham [2007] VSCA 252.

16. For the prosecution, it is submitted that though a number of specific errors are asserted, in truth the complaint is really that the sentence of imprisonment was in the circumstances manifestly excessive.  The prosecution submit that error of the kind contemplated by House v The King must be demonstrated.[2]  Accordingly, the Court must not substitute its own opinion regarding the appropriate sentence simply because it may not agree with the sentence imposed.[3]

    [2]     House v The King (1936) 55 CLR 499.

    [3]     Markarian v The Queen (2005) 228 CLR 357, [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ); Kentwell v The Queen (2014) 252 CLR 601, [42]-[43] (French CJ, Hayne, Bell and Keane JJ, with whom Gageler J agreed).

    Determination of the application for permission to appeal

17. Section 23(2) of the Act is new. Although the former Act permitted a sentencing court to discharge without penalty,[4] impose penalty without conviction,[5] or discharge without sentence on entry into a bond,[6] it did not explicitly permit a court to find that, where a defendant has spent time in custody and the court is satisfied that there is “good reason not to impose any further penalty”, it may, either, without recording a conviction dismiss the charge or, alternatively, on recording a conviction, discharge without further penalty.

    [4]     See s 15 of the Criminal Law (Sentencing Act) 1988 and s 23(1) of the Sentencing Act 2017 (SA).

    [5]     See s 16 of the Criminal Law (Sentencing Act) 1988 and s 24 of the Sentencing Act 2017 (SA).

    [6]     See s 39 of the Criminal Law (Sentencing Act) 1988 and s 97 of the Sentencing Act 2017 (SA).

18. It may be noticed that by s 23(3) of the Act, the Court may exercise these powers despite any minimum penalty fixed by Act or statutory instrument.

19. The content of the requirement to demonstrate “good reason” is not defined, as was the position under the former Act.  Accordingly, authorities concerning the former Act and the test of “good reasons” are of some assistance.[7]  These authorities recognise that the discretion vested in the sentencing court is wide and a broad range of factors may relevantly be taken into account.  These include the character, antecedents, cultural background, age and physical and mental condition of the offender, as well as the existence of extenuating circumstances. In appropriate cases, the religious background of an offender might also be relevant.[8] 

    [7]     See Police v Zefi [2003] SASC 218 and R v Yousef (2005) 155 A Crim R 134.

    [8]     R v Yousef (2005) 155 A Crim R 134, [42]-[47] (Sulan and Layton JJ).

20. We do not place much store in the absence of detailed reasons on the suggested failure by the sentencing Judge to specifically refer to the requirement to demonstrate “good reason” under s 23(2)(b). The Court assumes that the sentencing Judge was well-acquainted with the relevant sentencing law and principles.[9]

    [9]     KMC v Director of Public Prosecutions (SA) (2020) 267 CLR 480; Weetra v The Queen [2021] SASCA 19, [28] (Bleby JA, with whom Kelly P and Doyle JA agreed).

21. Nonetheless, and with respect, it may be doubted whether the sentencing Judge was correct to find that there was a history of “relevant offending” which “illustrates that your previous interaction with the courts has not had a deterrent effect upon you”.  It may be accepted that an old conviction cannot be regarded as an aggravating factor, but that is not the question in issue here.[10]  It may also be accepted that, ordinarily, a defendant who comes before the court with a previous conviction can expect to receive a heavier penalty than a defendant of good character charged with the same offence who has previously been convicted of relevant offending; the need for personal deterrence is greater and the prospects of rehabilitation lower.[11]

    [10]   cf R v Graham [2007] VSCA 252.

    [11]   R v Reiner (1974) 8 SASR 102; R v Bukvic (2010) 107 SASR 405; R v Malakouti [2018] SASCFC 115.

22. The question in this case is whether a very old conviction for a different offence demonstrated that the “need for personal deterrence” was, in the circumstances of this case, “important”.  The earlier conviction was for the possession of a firearm without holding a firearms licence of the appropriate class.  Before the sentencing Judge, it was assumed that the appellant had held some form of firearms licence, albeit not one of the appropriate class.  Unsurprisingly, counsel for the appellant before the sentencing Judge told the court that the appellant did not have a clear recollection of the offending and, as importantly, that it occurred some years before the marked shift in community attitude to firearms following events in Port Arthur in 1996.

23. Whilst of some slight relevance, it may be doubted whether this offending, 30 years before, really did demonstrate that personal deterrence was “important” in this case.  That is not to deny the role of general deterrence, nor the serious view generally and rightly taken of firearm offences by the courts and the community. 

24. In this case, however, the appellant came before the court having already served 15 days in custody.  The sentencing Judge was therefore dealing with a defendant of 73 years of age, of otherwise good character, who had already had the consequences of his offending brought home to him.  In those circumstances it might well have been thought that the need to address personal deterrence had already been met by that period of incarceration.   

25. Ultimately, it is not necessary to reach a concluded view as to whether the approach taken to prior offending was erroneous.  That is because, in our view, the sentence which was imposed was manifestly excessive.  That is so for three reasons.

26. First, the firearm was largely hidden, and the pellets were stored separately.  There is no suggestion that it was made readily available to other members of the household or anyone else.  Accordingly, this offending was, comparatively, less serious than other cases involving the possession of a firearm in public.[12]

    [12]   Allsopp v The Queen [2021] SASCA 34, [44] (Kelly P, Lovell and Doyle JJA), citing as examples R v Darling [2017] SASCFC 46; R v Fusco [2017] SASCFC 47; R v Capaldo [2015] SASCFC 56.

27. Second, though it cannot be doubted that an air rifle represents a potential danger to the public, particularly if it is used in connection with other offending, that is not the agreed basis upon which this case was approached.  In this case the air rifle had only been used to deter vermin and there is no suggestion that its use was associated with any actual danger to the public.

28. Third and finally, it is notorious that an air rifle discharging pellets is unlikely to cause the range of serious injuries that other firearms can cause and, in consequence, the possession of that kind of firearm in the circumstances which were accepted by the court had to be regarded as being at the lower end of the scale of potential offending involving the possession of a Category A firearm. 

29. Whilst offences involving the possession of a single air rifle or airgun are not common, and each case must necessarily depend on its own circumstances, an appropriate sentence for a defendant who is otherwise of good character need not invariably involve a sentence of imprisonment, whether suspended or otherwise.  An appropriate sentence might well involve a fine, with or without a conviction being recorded.[13] That is to say, depending on the circumstances, it might well be open to conclude that imprisonment is not the only penalty that can be justified in the case of the possession of a single air rifle or airgun, see s 10(2) of the Act:

    (2) Subject to this Act or any other Act, a court must not impose a sentence of imprisonment on a defendant unless the court decides that—

    (a)     the seriousness of the offence is such that the only penalty that can be justified is imprisonment; or

    (b)     it is required for the purpose of protecting the safety of the community (whether as individuals or in general).

    [13]   See, by way of example, Golding v Police [2007] SASC 159, [17]-[22] (Kelly J, as she was) where no conviction was recorded.

30. Though the respondent drew attention to other cases where sentences of imprisonment had been imposed, this was done with the frank acknowledgment that those other cases, involving other kinds of firearms, invariably depended on their precise circumstances.  Accordingly, it was accepted that cases involving different circumstances, particularly where they involve the possession of numerous firearms, are of very limited assistance.[14]

    [14]   See for example R v Gasmier [2011] SASCFC 43, where the defendant was sentenced for a range of firearms offences, one of which included possession of a Category A firearm without a license; R v Simpson (2016) 125 SASR 352, where the defendant was sentenced for a range of offences including firearms offences, one of which included possession of a Category A Firearm without a licence; Warne v The Queen [2020] SASCFC 124, where the defendant was sentenced for a range of offences, including one count of possession of a Category A Firearm without a licence. See also Barbaro v The Queen (2014) 253 CLR 58, [41] (French CJ, Hayne, Kiefel and Bell JJ).

31. Notwithstanding the undoubted importance of general deterrence,[15] where this appellant had served 15 days in prison in connection with his offending the imposition of a ten-month sentence was not necessary to meet the requirements of general and personal deterrence as well as community safety.  Though that sentence was suspended, a suspended sentence is nonetheless a real and significant sentence.[16]

    [15]   Allsopp v The Queen [2021] SASCA 34, [41] (Kelly P, Lovell and Doyle JJA).

    [16]   R v Locke (1973) 6 SASR 298, 301-302 (Bray CJ, Mitchell and Sangster JJ); Elliott v Harris (No 2) (1976) 13 SASR 516, 527-528 (Bray CJ, with whom Bright and Zelling JJ agreed); Varnavides v Victorian Civil and Administrative Tribunal and Another (2005) 12 VR 1, [31] (Vincent JA, Nettle JA, and Harper AJA).

32. Accordingly, we would grant permission to appeal, allow the appeal, set aside the sentence and proceed to resentence the appellant. 

1. On resentence, we take into account the nature of the offending earlier outlined, the nature and conceded use of this air rifle, together with the limited relevance of the earlier conviction.  In the circumstances of this case, we would attach no weight to that conviction.  The appellant’s personal circumstances of particular relevance on resentence include that he was 73 years of age, of good character and that he had a range of medical conditions.  We also take into account the contribution the appellant has made to his community over many years, as attested by his very favourable character references. 

2. Whilst we have wavered on whether to record a conviction, in our view that is an appropriate step to take in this case.  As in many other cases, it must be recognised that to do otherwise is by way of exception to the normal rule.[17] 

   [17]   Sims v Police (2000) 30 MVR 524.

3. As for penalty, we take into account the nature of the offending and the circumstances of the offender and conclude that the relevant sentencing considerations will be met by the time already served. In particular, the circumstances to which we have referred, which are similar to those which the sentencing Judge took into account when deciding to suspend, furnish a proper basis for the exercise of the discretion contained in s 23(2)(d) of the Act so as to permit us to impose no further penalty.

4. In all of these circumstances, we would proceed under s 23(2)(d) by entering a conviction but by otherwise imposing no further penalty. We would make the following orders:

   1.Permission to appeal is granted.

   2.The appeal is allowed, and the orders made in the District Court are set aside.

   3.On resentence, a conviction is recorded but otherwise no further penalty is imposed.

   LOVELL JA:

5. On 21 August 2020, Mr Rito Calabrese (the appellant) was found in possession of a Category A firearm, namely a ‘Cometa’ single shot break action air rifle. He did not have a licence for the firearm.  He was arrested for the offence of possessing this firearm without having the appropriate licence.  He was also charged with four other firearms offences.  The appellant spent 15 days in custody before he was granted bail.  It is likely that bail was not initially granted because of the seriousness and number of charges.  In due course the other four charges were withdrawn.

6. The appellant pleaded guilty in the Magistrates Court to one count of possession of a firearm without a licence, contrary to s 9(1) of the Firearms Act 2015 (SA) (“Firearms Act”), and was committed to sentence in the District Court.  On 14 October 2021, the sentencing Judge imposed a sentence of imprisonment of eight months and one day (reduced by 15 per cent from 10 months on account of the appellant’s guilty plea and further reduced by 15 days for time spent in custody).

7. The sentencing Judge, after finding good reasons existed, suspended the sentence upon the appellant entering into a bond to be of good behaviour for a period of 12 months, and imposed the standard good behaviour and firearm conditions.

8. I have had the advantage of reading the draft judgment of Livesey P and David JA.  I gratefully adopt their summary of the facts and of the appellant’s personal circumstances.

9. As Livesey P and David JA have outlined, while the appellant submits that the sentencing Judge made a number of “process” errors, the main argument on appeal was that the sentence imposed is manifestly excessive.  The legal principles involved on appellate review of a sentencing discretion are well known.[18]  I agree with Livesey P and David JA that the sentence imposed is manifestly excessive.  I do not consider that the sentencing Judge made any of the suggested process errors when sentencing.  I nevertheless consider the sentence to be outside of the range of available sentences such that the sentence imposed is unreasonable and unjust. 

   [18]   House v The King (1936) 55 CLR 499.

10. However, I am unable to agree with the approach of Livesey P and David JA on the question of resentence.  My reasons follow.

    Discussion

11. Mr Redford, counsel for the appellant, submits that the appellant is generally a man of good character, having had a long and successful working career. Character references tendered establish that he is “honest to a fault” and that he is renowned within the Italian community for his tireless work for the benefit of the community.  At the time of sentencing, the appellant was 73 years old with physical and mental health issues.  Undoubtedly, the 15 days imprisonment would have had a significant impact on him.  Mr Redford—while accepting that the offending was serious—submits that given the nature of firearm, the offending was at the lower end on the scale of objective seriousness.

12. Mr Scobie, counsel for the respondent, submits that the safety and protection of the community is a paramount concern in fixing an appropriate sentence and that such concern is heightened when sentencing for a firearms offence.

13. In my view, the offending was serious and called for a term of imprisonment to be imposed. The appellant, while of good character, was as the sentencing Judge found, aware of the requirement to hold a firearms licence.  The firearm was registered to his daughter’s father-in-law and the appellant had possessed it for approximately 15 years.  While there is no direct evidence on how often the appellant used the air gun, it is open to infer that he used it from time to time for the stated purpose.  His possession could not be described as fleeting, nor was the firearm, for example, sitting in a shed unused and forgotten.  Further, the sentencing Judge rejected the appellant’s submission that he simply overlooked and misunderstood his obligation to obtain a licence.  The appellant had been for many years involved with a pistol club and had been, up to 2004, a collector of firearms.  In 1997, the appellant had been refused a firearms licence.  This refusal was most likely because of his difficulty with the English language and his inability to complete written aspects of the licence requirements.  The appellant has a previous conviction for possession of a firearm in 1989.

14. Further, as the sentencing Judge observed, the firearm was unsecured and when located, was only “semi-concealed” and readily accessible by someone entering through the front door of the house.

15. The sentencing Judge remarked:

    It is clearly the case that you became complacent over your obligations under the Firearms Act.  You have previously been the holder of firearms licences.  You have had a longstanding and committed involvement with firearms through pistol clubs.  It is not the case that you could be said to be naive as to the requirements for licensing.

16. It is against the background discussed above that the sentencing Judge remarked:

    The need for personal deterrence is, in my view, important considering your previous conviction for possession of a firearm without … the licence of an appropriate class.  While that offending occurred some 30 years ago it illustrates that your previous interaction with the courts has not had a deterrent effect upon you.

17. I agree with the sentencing Judge’s remarks.  The sentencing Judge had to consider the previous conviction against the appellant’s admitted conduct.  In isolation, the prior offending could be said to be of minimal importance.  When considered in the context of his failure to obtain a licence in 1997, his membership of the pistol club, his interest in collecting guns, his possession of this firearm for 15 years and his complacent attitude to his obligations under the Firearms Act, the prior conviction becomes more important.  So too does the question of personal deterrence.

18. Many years ago, a licence was not required to possess an air gun.  More serious firearms were not required to be securely stored. Citizens did not have to justify their possession of a firearm provided that had the appropriate licence. Societal attitudes towards firearms changed some decades ago.  Amendments made to the Firearms Act and the Firearms Regulations 2017 (SA) reflected the change in attitude. The purpose of the amendments was to introduce stricter controls over the possession and use of firearms. Parliament introduced various categories for firearms.

19. Category A firearms under the Firearms Act include rim fire rifles (not being self-loading rifles), paint-ball guns, shot guns (not being self-loading, pump action or lever action), as well as air guns.  While it is correct to say that Parliament has recognised that Category A firearms are the least serious (dangerous) type of firearms, it still provides a significant maximum penalty of $20,000 or four years’ imprisonment for possessing one without holding the appropriate licence.

20. While I consider the sentence imposed by the sentencing Judge to be manifestly excessive, her Honour was correct in finding that a sentence of imprisonment was appropriate.  This was a flagrant breach of the Firearms Act.

21. But for the appellant’s plea of guilty I would convict the appellant and impose a term of imprisonment of six months. I would allow approximately a 15 per cent reduction for his plea of guilty and also reduce the sentence to allow for the 15 days he served in gaol before being granted bail. Good reason exists to suspend the sentence and I would do so on the same conditions as the sentencing Judge imposed. It follows from my sentence that I am not satisfied, pursuant to s 23(2)(b) of the Sentencing Act 2017 (SA), that good reason exists not to impose any further penalty over and above the 15 days he has already served.

    Orders

    1.Permission to appeal is granted.

    2.The sentence set aside.

    3.The appellant is sentenced four months and 20 days imprisonment.  That sentence is suspended on the appellant entering into a bond to be of good behaviour for a period of 12 months.